State v. Pellegrino

• Decision Date: 21 August 1984
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Richard PELLEGRINO.

Page 537

480 A.2d 537

194 Conn. 279

STATE of Connecticut v. Richard PELLEGRINO.

Supreme Court of Connecticut.

Argued June 12, 1984.

Decided Aug. 21, 1984.

Temmy A. Pieszak, Hartford, with whom was Joette Katz, New Haven, for appellant (defendant).

Donald A. Browne, State's Atty., with whom, on the brief, was Dominick J. Galluzzo, Asst. State's Atty., for appellee (State).

Before SPEZIALE, C.J., and PETERS, PARSKEY, SHEA and GRILLO, JJ.

SHEA, Associate Justice.

The defendant, Richard Pellegrino, was charged with committing manslaughter in the first degree ¹ by causing the death of Ronald Memoli, and arson in the first degree ² by starting a fire with the intent to destroy a building while aware that Memoli ³ was inside the building. A jury found him guilty of both crimes and the court rendered judgment in accordance with the verdicts. In his appeal the defendant raises four claims of error, maintaining: (1) that the term "another person" as used in General Statutes (Rev. to 1977) § 53a-111 was not intended to include an accomplice to the arson; ⁴ (2) that the court erred in concluding that the defendant had waived his right to remain silent when, while under arrest, he responded to statements made by a police officer; (3) that the prosecutor improperly commented upon the fact that the defendant had refused to talk to the police; and (4) that the evidence was insufficient to establish his guilt beyond a reasonable doubt. We find error only in the improper comment of the prosecutor. Accordingly, we order a new trial.

From the evidence presented at trial and inferences drawn therefrom, the jury could have reasonably found the following facts: On March 13, 1978, at approximately 11:50 p.m., the defendant Pellegrino attempted to call Ronald Memoli at Memoli's sister's house where Memoli was living. Doreen Koellisch, Memoli's sister, answered the phone, and after a brief conversation with the defendant, requested that he call back on another phone. Shortly thereafter, the defendant called back on the kitchen phone and spoke briefly with Memoli. After concluding the conversation Memoli told his sister that the defendant was coming to pick him up because they had to go out. The defendant arrived driving a Lincoln Continental. He was accompanied by two individuals unknown to Koellisch. All four drove off together shortly thereafter.

At approximately 3 a.m. on March 14, 1978, an explosion occurred at the Dolphin Fish Market located at 315 Wood Avenue in Bridgeport. A fire broke out and completely destroyed a five store shopping complex located on the avenue. An adjacent dwelling and two automobiles, all located on Elmwood Avenue, were also damaged. A resident of one of the Elmwood apartments was thrown from her bed as a result of the explosion, and in a panic she and her daughter fled the apartment. Before she left her apartment, however, the women heard tires squealing as a car left the scene of the fire.

Firemen who were attempting to extinguish the blaze discovered inside the fish market three five gallon cans which had contained a petroleum distillate. From this and other evidence the chief and deputy chief of the fire department concluded that the fire was of incendiary origin.

At approximately 4 a.m., Francis Trapani, Pellegrino's neighbor, received a call from the defendant's girlfriend requesting her to babysit while the girlfriend drove the defendant to St. Vincent's Hospital. When Trapani arrived at the Pellegrino home she noticed that the defendant's face was swollen and that he was changing into another pair of blue jeans. The pants that he had been wearing were burned in the rear. The defendant arrived at St. Vincent's shortly thereafter, where he was treated for facial and body burns.

That same day, at approximately 11 a.m., the police responded to a call for emergency assistance from a house located on Fairfield Beach Road. Upon arriving an officer noticed a Lincoln Continental parked in front of the house. Leonard Hainsworth, ⁵ who was then using the alias Sam Gordon, was found inside. He was suffering from first and second degree burns that he said had resulted from an oil burner explosion in Stamford. No one had reported this event, however, to the Stamford fire or police department. Hainsworth was eventually transported to Bridgeport Hospital where he was treated for his injuries.

On March 17, 1978, members of the police or fire departments were sifting through the rubble at the fish market when, at a spot close to where the gasoline cans had been discovered, they found the remains of a person later identified as Memoli. A pathologist who examined the corpse was of the opinion that Memoli died in the fire.

I

In his first claim of error the defendant maintains that General Statutes (Rev. to 1977) § 53a-111 ⁶ was not intended to cover situations where an arsonist burns a building while aware that a coparticipant is within the building. The defendant maintains that when the General Assembly used the term "another person," it meant other than one who "starts a fire or causes an explosion." He claims that because the evidence demonstrated that Memoli was an accomplice ⁷ and, therefore, was one who started a fire or caused an explosion, he was not "another person" as required by the statute. The defendant argues that any other construction of the statute would be an unconstitutional judicial expansion, violating the principles set forth in Bouie v. Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). ⁸

A cardinal rule of statutory construction is that where the words of a statute are plain and unambiguous the intent of the General Assembly in enacting the statute is to be derived from the words used. See State v. Smith, 194 Conn. 213, 221, 479 A.2d 814 (1984); McDonald v. Haynes Medical Laboratory, Inc., 192 Conn. 327, 334, 471 A.2d 646 (1984); P.X. Restaurant, Inc. v. Windsor, 189 Conn. 153, 159, 454 A.2d 1258 (1983). A corollary rule is that the words of a statute are to be construed with common sense and "according to the commonly approved usage of the language;" General Statutes § 1-1; State v. Belton, 190 Conn. 496, 506, 461 A.2d 973 (1983); State v. Roque, 190 Conn. 143, 151, 460 A.2d 26 (1983).

When construed in a common sense fashion it is clear that the phrase "another person," as used in § 53a-111 refers to one other than the person charged with the crime. See State v. Smith, supra. If we were to adopt the defendant's construction of the statute, we would be creating an exception that would not otherwise exist, i.e., that the other person present in or near the building cannot be the defendant's accomplice. It is noteworthy that the General Assembly has expressly provided such an exception in the felony murder statute. See General Statutes § 53a-54c. ⁹ The absence of a similar provision in § 53a-111 (Rev. to 1977) strongly suggests that such an exception was not intended by the General Assembly. We construe § 53a-111 (Rev. to 1977) to include situations where the defendant burns a building with the intent to destroy it while aware that an accomplice is in or near the building.

Nor do we find our construction of the statute to be "an unforeseeable and retroactive judicial expansion of narrow and precise statutory language." Bouie v. Columbia, supra, 378 U.S. at 352, 84 S.Ct. at 1702. In Bouie, the Supreme Court struck down the petitioner's conviction for trespassing where the state supreme court had expanded the trespassing statute to include the prohibited conduct of "remaining on the premises of another after receiving notice to leave." Id., 350, 84 S.Ct. at 1701. The applicable statute provided only that it was unlawful to " '[enter] upon the lands of another ... after notice from the owner or tenant prohibiting such entry....' " Id., 349-50, 84 S.Ct. at 1700. The state supreme court's construction was not a foreseeable extension of prior law, ¹⁰ and, therefore, gave no fair warning to the petitioners that their conduct was unlawful. Id., 350, 84 S.Ct. at 1701.

Unlike the statute at issue in Bouie, § 53a-111 gave substantial warning that a defendant would be engaging in an unlawful act if he burned a building with the intent to destroy it, aware that any person, whether or not an accomplice, was inside or close to the building. The language expressly provides that it is unlawful to burn a building with the intent to destroy it "and ... the actor is either aware that a person is present in or close to such building, or his conduct manifests an indifference as to whether a person is present in or close to such building." The statutory language does not exclude any specific categories of "persons." Absent such an exclusion, the defendant was fairly apprised that his accomplice was a "person" as that term is used in the statute.

II

The defendant's second claim of error concerns the trial court's ruling on the defendant's motion to suppress statements he made to a Bridgeport police officer. The defendant claims that the statements were made without a voluntary, intelligent and knowing waiver of his Miranda ¹¹ rights. The factual underpinnings of this claim are as follows: After the defendant was taken to St. Vincent's Hospital, he was admitted and treated for burns on his face and hands. In order to alleviate Pellegrino's pain, a doctor prescribed eight milligrams of morphine, which was administered several times per day. ¹²

On March 17, 1978, three days after the fire at the fish market, the defendant, still recovering from his burns, was placed under arrest by officer Anthony P. Fabrizi. Fabrizi informed Pellegrino of his rights, ¹³ and then told Pellegrino, "obviously you have gotten yourself hurt. You are just a tool. You were the means to an end. You're being used. And you're going to take the fall on manslaughter and arson in the first degree. And you know we're not really interested in you; I want the man that contracted the job." The defendant...